State Secret's Privilege Is Established On A Lie: From Reynolds To Al Masri - will we ever learn?

[ivan_astikov]

In the light of the recent Wikileaks hullabaloo, how do WE decide who decides who “Needs To Know”? Or should WE, the public, not get ourselves too worked up on this issue and allow those who know what they are on about deal with this stuff?

Anyone familiar with the cases mentioned in the thread title will be aware of how the response “That’s “Classified” information!” can be used not just to protect, but to deflect from serious mistakes that have been made, so how do we go about making sure this privelige is not abused?
ps. Can a kind mod spell my “privelige” in the thread title correctly, please?

[ivan_astikov]

What, I’ve not given you enough to debate?

I was hoping for maybe a few reasoned responses on the subject before I dived in with my own opinions.

[Nobody]

I have no idea about the specific case you mentioned, but I’ve been wondering for a while now, how do we challenge government actions when it deals with classified information.

To better articulate, for example when the Patriot Act was in full force and there was that one guy (my memory is usually crap, especially when it comes to names) who was accidentally given a log book of his own surveillance, when he tried to sue the government it made the case that the book contained state secrets so the judge didn’t allow it to be used as evidence. After that the guy tried to have a trail based on his memory of the book. I’m not sure how that turned out.

Anyway, in general, if the government does something that might be illegal or unconstitutional but when you try to sue they cry “Classified information” or “State secrets” and the courts go along with them, then how do you hold them accountable?

I asked once before but never got any satisfactory answers.

[Simplicio]

@Nobody

I have no idea about the specific case you mentioned, but I’ve been wondering for a while now, how do we challenge government actions when it deals with classified information.

Summarizing from this weeks This American Life broadcast, Reynolds was the case in which the SCOTUS established the “National Security Letter” privilege for the Federal Gov’t. Basically the Feds can ignore subpoenas for evidence in cases where they claim releasing the documents would harm national security. As it turns out, the document in question in Reynolds has since been declassified and a) didn’t contain the secret information the gov’t claimed it did and b) did contain information that would’ve hurt the gov’ts case in the trial in which it was subpoenad.

So basically, the abuses that everyone fears are occurring regarding National Security Letters in fact happened with the very first case.

The obvious solution, IMHO, would be to establish a court with a high security clearance that would have no other purpose then to double check items the gov’t claimed would be harmful to National Security. This would allow the gov’t to keep actual secret info that could be damaging from being released to the public while providing some oversight to ensure they don’t abuse the privileged to just keep relevant evidence or embarassing information underwraps regardless of its national security value.

[Little_Nemo]

@Simplicio

The obvious solution, IMHO, would be to establish a court with a high security clearance that would have no other purpose then to double check items the gov’t claimed would be harmful to National Security. This would allow the gov’t to keep actual secret info that could be damaging from being released to the public while providing some oversight to ensure they don’t abuse the privileged to just keep relevant evidence or embarassing information underwraps regardless of its national security value.

I agree. You can’t release all information - there is a legitimate need for some stuff to remain secret. And, as has been shown, you can’t trust any administration to monitor itself and not misuse this power. So the only solution appears to be having an independent oversight group that has access to the classified information and has the power to decide whether it was classified for a legitimate reason.

[Nobody]

I suggested that before and the response was that Obama’s looking into that.

So, has he made any progress yet?

[Simplicio]

@Simplicio

Summarizing from this weeks This American Life broadcast, Reynolds was the case in which the SCOTUS established the “National Security Letter” privilege for the Federal Gov’t.

Err…I meant State Secrets Privilege. A National Security Letter is something different. Apologies.

[Simplicio]

@Nobody

I suggested that before and the response was that Obama’s looking into that.

So, has he made any progress yet?

A bill was introduced in the last congress to do this but didn’t get far. There has been a movement to try again in the current Congress, but I’m not sure how far its gotten.

[Nobody]

I’m not holding my breath, unfortunately.

[ivan_astikov]

If Obama wanted to dispel or defuse the doubts of “The Birthers” and those who think he is just a shill for the Tri-Lateral Commission and it’s cronies, all he’d need to do is make that bill his biggest priority and show that he is really serious about change.

[Little_Nemo]

@ivan_astikov

If Obama wanted to dispel or defuse the doubts of “The Birthers” and those who think he is just a shill for the Tri-Lateral Commission and it’s cronies, all he’d need to do is make that bill his biggest priority and show that he is really serious about change.

No, they would just say that shows Obama wants to reveal classified information - just like an anti-American Muslim terrorist would.

Jesus could return and personally endorse Obama and that wouldn’t be enough for the birthers.

[John_Mace]

@ivan_astikov

If Obama wanted to dispel or defuse the doubts of “The Birthers” and those who think he is just a shill for the Tri-Lateral Commission and it’s cronies, all he’d need to do is make that bill his biggest priority and show that he is really serious about change.

It wouldn’t make any difference to the birthers. They’re not coming from a position of reasoned debate.

Does the Freedom of Information Act have a provision to challenge the classification of certain information?

[Declan]

@Simplicio

The obvious solution, IMHO, would be to establish a court with a high security clearance that would have no other purpose then to double check items the gov’t claimed would be harmful to National Security. This would allow the gov’t to keep actual secret info that could be damaging from being released to the public while providing some oversight to ensure they don’t abuse the privileged to just keep relevant evidence or embarassing information underwraps regardless of its national security value.

I dont think you need to go that far, in establishing top secret courts, they would have to be in camera and security classifications may vary in proportion.

There is already a congressional over sight committee for inteligence, have them look over the relevant documents, and they clear it to be judged by the courts or not.
declan

[Simplicio]

@Declan

I dont think you need to go that far, in establishing top secret courts, they would have to be in camera and security classifications may vary in proportion.

There is already a congressional over sight committee for inteligence, have them look over the relevant documents, and they clear it to be judged by the courts or not.

I think that risks turning it into a political football, which is probably not desirable. Plus there’s already a “secret court” that rules on the legality of foreign wiretaps. Simply expanding their mandate to look into state secret privilege requests seems the most straight forward plan.

[Nobody]

@Declan

@Simplicio

The obvious solution, IMHO, would be to establish a court with a high security clearance that would have no other purpose then to double check items the gov’t claimed would be harmful to National Security. This would allow the gov’t to keep actual secret info that could be damaging from being released to the public while providing some oversight to ensure they don’t abuse the privileged to just keep relevant evidence or embarassing information underwraps regardless of its national security value.

I dont think you need to go that far, in establishing top secret courts, they would have to be in camera and security classifications may vary in proportion.

There is already a congressional over sight committee for inteligence, have them look over the relevant documents, and they clear it to be judged by the courts or not.
declan

I don’t know. There was (again, bad memory, so I’m forgetting names) some info that was controversial so Bush let some members of congress with high enough security clearance look at, but one congressman was turned away even though he had the security clearance and might have even been on the oversight committee. Point is if the information is under the control of the executive branch it seems there’s not much congress can do to get the information if the executive branch doesn’t want to release it.

We need a court system that can Subpoena documents if needed.

[Little_Nemo]

Point is if the information is under the control of the executive branch it seems there’s not much congress can do to get the information if the executive branch doesn’t want to release it.

Only if the President is willing to defy Congress and Congress is not willing to call his bluff.

[Nobody]

@Little_Nemo

Point is if the information is under the control of the executive branch it seems there’s not much congress can do to get the information if the executive branch doesn’t want to release it.

Only if the President is willing to defy Congress and Congress is not willing to call his bluff.

It’s happened before.

[Bricker]

@Simplicio

As it turns out, the document in question in Reynolds has since been declassified and a) didn’t contain the secret information the gov’t claimed it did and b) did contain information that would’ve hurt the gov’ts case in the trial in which it was subpoenad.

Really?

That’s not what the court said in 2004 when it ruled on the issue, after a family member tried to set aside the original settlement on the grounds you mention above:

Despite Plaintiffs’ allegations, a review of the complaint and the exhibits attached thereto, including the declassified documents, does not suggest that the Air Force intended to deliberately misrepresent the truth or commit a fraud on the court. Because a determination of what information should be kept confidential in the interest of national security involves predictive judgments about the potential future harm of premature disclosure, informed expertise and even intuition “must often control in the absence of hard evidence.” Kaluse v. Blake, 428 F. Supp. 37, 38 (D.D.C. 1976). In all likelihood, fifty years ago the government had a more accurate understanding “on the prospect of danger to [national security] from the disclosure of secret or sensitive information” than lay persons could appreciate or than hindsight now allows. Halperin v. NSC, 452 F. Supp. 47 (D.D.C. 1978), aff’d 612 F.2d 586 (D.C. Cir. 1980). Plaintiffs take aim at the factual foundation of the military secret privilege, suggesting that concealing this accident investigation report constituted an unconscionable plan or scheme to improperly influence the Court such that the privilege resulted from an undeserving test case. But, because “each individual piece of intelligence information, like a piece of [a] jigsaw puzzle, may aid in piecing together bits of information even when the individual piece is not of obvious importance itself,” Fitzgibbons v. CIA, 911 F.2d 755, 763 (D.C. Cir. 1990), it is proper to defer on some level to governmental claims of privilege even for “information that standing alone may seem harmless, but that together with other information poses a reasonable danger of divulging too much to a `sophisticated intelligence analyst.’” In re United States, 872 F.2d 472, 475 (D.C. Cir. 1989) (quoting Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978). “Even the most apparently innocuous [information] can yield valuable intelligence.” Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989).

Gee, I wonder why you chose not to mention that part?

[Nobody]

@Bricker

Despite Plaintiffs’ allegations, a review of the complaint and the exhibits attached thereto, including the declassified documents, does not suggest that the Air Force intended to deliberately misrepresent the truth or commit a fraud on the court. Because a determination of what information should be kept confidential in the interest of national security involves predictive judgments about the potential future harm of premature disclosure, informed expertise and even intuition “must often control in the absence of hard evidence.” Kaluse v. Blake, 428 F. Supp. 37, 38 (D.D.C. 1976). In all likelihood, fifty years ago the government had a more accurate understanding “on the prospect of danger to [national security] from the disclosure of secret or sensitive information” than lay persons could appreciate or than hindsight now allows. Halperin v. NSC, 452 F. Supp. 47 (D.D.C. 1978), aff’d 612 F.2d 586 (D.C. Cir. 1980). Plaintiffs take aim at the factual foundation of the military secret privilege, suggesting that concealing this accident investigation report constituted an unconscionable plan or scheme to improperly influence the Court such that the privilege resulted from an undeserving test case. But, because “each individual piece of intelligence information, like a piece of [a] jigsaw puzzle, may aid in piecing together bits of information even when the individual piece is not of obvious importance itself,” Fitzgibbons v. CIA, 911 F.2d 755, 763 (D.C. Cir. 1990), it is proper to defer on some level to governmental claims of privilege even for “information that standing alone may seem harmless, but that together with other information poses a reasonable danger of divulging too much to a `sophisticated intelligence analyst.’” In re United States, 872 F.2d 472, 475 (D.C. Cir. 1989) (quoting Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978). “Even the most apparently innocuous [information] can yield valuable intelligence.” Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989).

Would a fair summary be, “The information seems harmless, but it’s possible that this information combined with other information could have proven harmful to this country therefore we’ll err on the side of caution and take the military’s word for it that it would have been harmful to release it at the time.”?

[Simplicio]

@Bricker

Gee, I wonder why you chose not to mention that part?

Err…I didn’t know it. I was just trying to answer Nobody’s question as best I could since I’d heard a bit about it on the radio, as I said. Not sure what I did to draw the paranoid accusations.

But in any case, I don’t see that the '04 decision really revealed anything new, they basically just repeat the decision of the '52 SCOTUS ruling to take the gov’ts word for it rather then look at the document themselves and try and figure things out.

And I can’t really blame them for not wanting to try and work out what people long since dead were thinking when they decided to try and keep the original accident report confidential. But a FISC like court looking at new request would have the actual relevant people there to explain it to them, and like the FISC court would probably largely bow to the expertize of the gov’t officials, but at least there would be some requirement for the gov’t to be able to come up with some plausible actual harm to National Security, and prevent them from using it as a free get-out-of-trial card for cases that might reveal awkward but non-dangerous information.